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BEFORE
THE POLLUTION
CONTROL BOARD
OF THE STATE
OF ILLINOIS
SALiNE
COUNTY LANDFILL,
)
Petitioner,
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
PCBNo.
04-1 17
(Permit Appeal)
RECEIVED
CLERK’S OFFICE
APR 05
2004
STATE OF ILLINOIS
Pollution
Control Boarc~
Dorothy M. Gunn,
Clerk
Illinois Pollution Control Board
James R.
Thompson
Center
100 West Randolph Street
Suite 11-500
chicago, IL 60601
Carol Sudnian, Hearing
Offzccr
Illinois Pollution Control Board
1021
North Grand Avenue, East
P.0
Box
19274
Springfield, IL
62797-9274
Stephen F. Hedinger
HedingerLaw Office
2601
South Fifth Street
Springfield,
IL
62703
NOTICE
Brian E.
Konnen
Lueders, Robertson
& Kon2en, LLC
1939
Dehuar
Avenue
P.O. Box 732
Granite City, IL
62040-0735
Rod Wolfe, State’s Attorney
Saline County
State’s
Attorney Office
Saline County Courthouse
10
Bast Poplar Street
1larrisburg,
IL
62946
PLEASE
TAKE
NOTICE
that
I
have today filed
with
the
office
of the Clerk of the
Pollution
Control Board aRESPONSE TO PETITIONER’S BRIEF,
copies ofwhich
are herewith served upon you.
Respectfully submitted,
iLLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue,
East
P.O. Box 19276
Springfield, Illinois 62794-9276
2171782-5544
217/782-9143 (TDD)
Dated: April
5,
2004
j~PR—05—2584 15:55
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BEFORE
TIlE
POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
SALINE COUNTY LANDFILL, INC.,
)
Petitioner,
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
RESPONSE
TO
PETITIONER’S BRIEF
NOW
COMES the Respondent,
the Illinois
Environmental Protection
Agency
(“Illinois
EPA”), by
one of its attorneys, John J. Kim,
Assistant Counsel
and
Special Assistant
Attorney
General,
and,
pursuant
to the
briefing
schedule
set
by
the
assigned
Nearing
Officer,
hereby
submits its responseto the Petitioner’s
brief.
I.
INTRODUCTION
RECEav~D
CLERK’S OFFICE
APR 05
2004
STATE OF ILLINOIS
Pollution Control
Board
PCBNo. 04-117
(Permit
Appeal
—
Land)
A.
Standard ofreview
Section
39(a) of the
Illinois
Environmental
Protection Act (“Act”) (415 ILCS
5/39(a))
sets
forth the standard the Illinois
EPA shall
apply when deciding
whether to
issue
a permit.
Specifically,
Section
3 9(a) provides that when the Board has, by regulation, required a permit for
the construction, installation or operation of any type offacility, the applicant shall apply to the
Illinois
EPA
for such
a
permit.
The
Illinois
EPA
shall
issue
the
permit
upon
proof by
the
applicant that
the facility will not
cause a
violation
of
the Act or of the regulations thereunder.
Community Landfill
Company and
City of Morris v. Illinois
Environmental Protection ~gency~.
PCB 01-170
(December 6,
2001), p.
4
(“Community Landfill
I”);
Panhandle Eastern PiDe
Line
Company
v.
Illinois
Environmental
Protection Agen~y,PCB 98-102
(January
21,
1999), p.
7.
Here,
the
Illinois
EPA denied
a
permIt sought
by
the Petitioner
on
the basis
that
a
statutory
requirement (i.e., providing adequate proof oflocal siting approval) had not been met.
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The
Petitioner had
the burden
to
prove
to
the illinois
EPA that
approval of the permit
sought
would
not
violate
the
Act
or
regulations
if
the
Illinois
EPA
granted
the
permit
as
requested.
If Saline County Landfill,
Inc.
(“SCLI”) failed to prove that no violation would occur
upon
issuance,
it
would
be
proper
for
the
Illinois
EPA
to
deny
or
condition
the
permit
accordingly.
Browthn~-FerrisIndustries
of Illinois,
Inc.
v.
Pollution
Control
Board,
179
Iii.
App. 3d
598, 534
N.E.2d 616 (2~’
Dist
1989); Panhandle, p.
7;
John Sexton
Contractors Co.
v.
Illinois, PCB 88-139 (February
23,
1989), p. 4.
The Board
has
previously
held that
the
sole
question before
it in
a
permit
appeal
is
whether the applicant proves that the application, as submitted to the Illinois EPA, demonstrated
that no
violations
of the
Act would
have
occurred if the requested
permit had been issued
as
applied
for.
Community
Landfill
Company
and
City
of Morris
v.
Illinois
Environmental
Protection
Agency,
PCB
01-48,
01-49
(April
5,
2001)
C’Community
Landfill
II”),
p.
2;
Panhandle, p.
8;
Sexton, p.
6.
Thus, the Petitioner must demonstrate to the Board that issuance
ofthe permit at issue would not result in a violation ofthe Act or Board regulations.
It
is
well-settled that
the
Board’s
review of permit
appeals
is
limited
to
information
before
the
illinois
EPA
during the
Illinois
EPA’s
statutory
review period.
The
Board
will
generally not
consider information developed
by the permit
applicant, or the Illinois EPA, after
the Illinois
EPA’s
decision.
Community Landfill
I, p.
4;
Ahon Packaging Corp.
v.
Pollution
Control Board, 162 Iii. App. 3d
731, 738,
516
N.E.2d 275,280
(5th
Dist.
1987).
The hearing
before
the
Board
provides
a
mechanism for the
petitioner
to
prove
that
operating
under
the
permit as granted
would
not
violate the Act
or regulations.
Further,
the
hearing affords the petitioner the opportunity to challenge the Illinois EPA’s reasons for denying
the permit by means ofcross-examinatIon and
also
allows the Board
the opportunity to receive
2
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testimony
to
test
the validity
of the information
relied
upon by
the
Illinois
EPA.
~ommunitv
Landfill I, p. 4; Alton Packagin_g,
162 Iii. App. 3d at 73~,516 N.E.2d at 280.
Evidence that was not before the Illinois
EPA at the time of its decision is
typically not
admitted
at hearing or considered by
the Board.
Community
Landfill
I, p.
4;
West
Suburban
Recycling and
Energy Center, L.P.
v.
illinois Environmental Protection
Agency,
PCB
95-199,
95-125
(October
17,
1996); Panhandle, p.
8.
8.
Burden ofproof
In a permit appeal,
the burden of proof is upon
the permit applicant to
demonstrate that
the
regulatory
and
statutory
bases for the
Illinois
EPA’s
denial
are inadequate to
support
that
denial.
ESG
Watts,
Inc.
v.
Illinois
Pollution
Control
Board
and
Illinois
Environmental
Protection Age~ncy,
286 Ill. App.3d
325,
331,
676 N.E.2d 299; 303
(3rd
Dist.
1997);
35
III. Adm.
Code
105.112(a).
The permit applicant, not the Illinois EPA,
bears the burden of providing the
information necessary to demonstrate that no violation would occur.
The applicant is entitled to
a favorable decision if, and only if~,
it
has successfully borne its burden of
proof.
Therefore, the
primary
focus
must
remain
on
the
adequacy
of the
permit
application
and
the
information
submitted by the applicant to the Illinois EPA.
Sexton, p.
5.
C.
Issue on appeal
The issue before the Board here is whether the local siting
approval
issued
by the Saline
County Board to SCLI on November21,
1996, expired as to the subject permit application on the
basis that the permit application was not submitted within three years of the date of local siting
approval.
3
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IL
STATEMENT OF FACTS
The facts in this case are straightforward and simple.
On November 21,
1996, the Saline
County Board granted local
siting approval to SCLI.
Administrative Record,
pp.
329,
345-358.~
Later, on April 4,
2003, consultants for SCLI submitted an application for the lateral expansion
ofthe Saline County Landfill (“permit application” or “subject permit
application”).
The permit
application is also
identified as an application for significant modification.
AR, p.
316.
As part
of the permit application,
SCLI
included reference to the November
1996
siting approval.
AR,
pp.
329,
345-358.
No
other
proof of local
siting
approval
was
provided
with
the
permit
application.
On December
5,
2003, the Illinois
EPA issued
a fmal decision on the permit application.
AR, pp. 2-3.
The Illinois EPA denied the permit on the basis that the application did not provide
proof oflocal
siting approval pursuant
to Section
3 9(c) of the Illinois
Environmental Protection
Act (“Act”)
(415
ILCS
5/39(c))
since the siting provided in the application expired.
AR, p. 2.
In its statement of the facts, the Petitioner makes reference to the Board’s decision in the
case of Saline County
Landfill.
Inc.
v.
Illinois EPA, PCB
02-108 (May
16,
2002).
However, a
review
of the
facts
and
issues raised
in
that
case make clear
that
there are legal
and
factual
distinctions
between that case and the present matter.
Citations
to
dicta issued
by the Board
in
that
case have no precedential value here, and should be kept in context since none ofthe issues
or legal
arguments being made in
the case at bar were made in the older case.
Any attempt to
applythe arguments or holdings in that case to the present is akin to
forcing a square peg into a
round
hole.
For example, in that
case, the permit application
that was based on the November
1996
siting approval was submitted to the Illinois EPA
within
three years of the issuance ofthe siting
1
The
Administrative Record will hereinafter be referenced as either “Record” or “AR”
4
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approval.
Therefore, no concerns regarding whetherthe siting approval had expired by operation
of
Section
39.2(f)
of the Act
(415 ILCS
5/39.2(f))
were
necessary,
relevant,
or
raised
in
any
fashion.
That is
exactly
the issue
before the
Board
in
the present case, thus
the
present case
involves different
legal and
factual considerations.
Contrary to
assertions by the Petitioner, the
Illinois
EPA
made
no
“judicial
admissions”
since in
that
case
there the
final decision under
review was
not
based
on
a
finding that
local
siting
approval had
expired.
It
was
a
different
permit
application,
a
different
final decision
by the
Illinois
EPA,
and
different
review by the
Board.
In a post-decision order, the Board itself noted that the statement by the Board that SCLI
could avoid
seeking new
siting approval
by
submitting
a new
permit
application
was not
a
statement of law,
but rather was an
observation as to what the parties had not disputed.
Saline
County Landfill
(July
11,
2002), p.
2.
Since the Board
was not reviewing a situation in
which
the Illinois EPA determined that siting approval had
expired, there was no reason for the parties
to dispute that fact.
The case in PCB 02-108 is simply inapplicable to the present appeal.
The Petitioner also makes note ofthe fact that during the pendency ofthe subject permit
application, certain conversations were held between the Illinois EPA and SCLI during which the
topic of the validity ofthe November 1996 siting approval was raised.
In both that situation, and
the situation
in
which
the Illinois
EPA made statements
on that
topic
in
correspondence sent
before
the
issuance
of the
final
decision
here,
the
Illinois
EPA
did
not
misrepresent
any
understanding ofthe relevant law or facts.
Indeed, the Petitioner has not made any allegations
that
the
Illinois
EPA
should
be
estopped
from
issuing
the
December
2003
final
decision.
Obviously,
the
relevant
content
of
conversations
between
Illinois
EPA
and
SCLI
and
the
correspondence
sent
by
the
Illinois
EPA
during
the review of the
subject
permit
application
5
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differs
in position and
interpretation from that which was ultimately embodied in the
December
2003
final
decision.
As
will
be
discussed
below,
however,
the
Illinois
EPA
(like
any
administrative agency) may change its interpretations of law if reasonable
and warranted.
That
was the situation here.
In the present case,
the final decision was issued
by the Illinois
EPA
in the form of a
letter signed by Joyce Munie, the manager ofthe Illinois EPA’s Bureau ofLand Permit Section.
AR,
p.
3.
Ms.
Munie
has been granted the
final
authority
within the
Illinois
EPA to make
decisions
on
permit
applications,
and
she
is
not
beholden
to
follow
any
recommendations
provided by her staff
Hearing Transcript, p.
68.2
The decision issued by Ms. Munie was done in a timely fashion.
The Petitioner attempts
to paint that
decision in a
questionable light
by
claiming that the decision was issued
“without
warning.”
Petitioner’s Brief, p.
5.
What the Petitioner fails
to recognize
is
that there is no such
requirement for any
“warning”
or
other
notice
prior
to the
issuance
of a
final
decision
on
a
permit
application.
Section
39(a) of the Act requires that the Illinois EPA issue a final decision
within the time allowed, and that the Illinois EPA cannot approve a permit application ifto do
so
would result in the violation of the Act or underlying regulations.
Ifthe Illinois EPA denies a
permit, it must provide the sections of the Act or associated regulations that may be violated if
the permit were granted, the type of information the Illinois
EPA deems was not provided, and a
statement of the
reasons
why the
Act
and
regulations
might
not
be
met
if the
permit
were
granted.
A
review
of the
final
decision
issued
on
December
5,
2003,
shows
that
all
those
requirements were
met.
The Illinois EPA identified Section
3 9(c) ofthe Act as the section that
would
be violated, the Illinois EPA noted that proof of local
siting
approval was not provided,
2
The HearIng Transcript will hereinafter be referred to as,
“TR.”
6
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and
the
Illinois
EPA
explained
that
local
siting had
expired.
Those
statements
satisfy
the
requirements
imposed
by
Section
39(a)
of
the
Act.
Contrary
to
the
Petitioner~s
claims,
the
Illinois EPA need not explain in its final
decision the
specific rationale
and
interpretation of the
Act that led to the issuance ofthe final decisions so long as the required information is provided.
The Petitioner states that attempts by it to determine the justification for the reversal of
the Illinois
EPA’s
statutory interpretation were
objected to.
Petitioner’s
brief, p.
5.
Indeed, the
Illinois EPA did
rightly
and
successflully claim that privileged
and
confidential material
should
be
so protected.
However, that
said, the Illinois
EPA has clearly stated that
the final decision
reached
here
was
not
done
in
an
arbitrary or
capricious
manner.
Rather,
the Illinois
EPA
received
correspondence
from
the
Illinois
Attorney
General’s
Office
(“Illinois
AGO”)
that
contained
that
office’s
interpretation
and
application
of Section
39.2(f) to
the
review
of the
subject permit application.
Respondent’s Motion for Order ofProtection and Privilege Log, p.
2.
The Illinois AGO is the constitutional officer charged with representation of the
State of
Illinois and state agencies, including the Illinois EPA.
In this case, the Hearing Officerproperly
recognized that the Illinois AGO acted
in the capacity ofattorney to the Illinois
EPA.
It
is not
appropriate to divulge
the content of the privileged correspondence,
but
it
is appropriate for the
Illinois EPA to pay all due heed to advice from the Illinois AGO.
IlL
RULES OF STATUTORY CONSTRUCTION AND AGENCY DEFERENCE
A.
Look to language ofstatute
The
rules of statutory
construction
and
deference owed
to
an
administrative
agency’s
interpretation
of
statutes
it
administers
are
well~estabIished.
It
is
a
primary
rule
in
the
interpretation
and
construction
of
statutes
that
the
intention
of
the
legislature
should
be
ascertained and
given
effect.
A
court should
first
look
to
the
statutory
language as the
best
7
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indication
of legislative
intent
without
resorting
to
other
aids
of
construction.
Where
the
language of a statute
is plain and unambiguous, a court need not consider its
legislative history.
A court should not attempt to read a statute other than in the manner in which it was written.
In
applying plain
and unambiguous language, it
is not necessary for a court to search for any subtle
or not
readily
apparent intention
of the
legislature.
Envirite Cortoration
v.
Illinois
EPA,
158
1Il.2d 210, 215-217, 632 N.E.2d
1035,
1038 (1994).
B.
Look to le~jslativeintent
In
construing a statute, it is fundamental that a court is to ascertain and give effect to the
legislative intent.
In doing this, the court should consider not only the language of the statute but
also
the reason
and necessity for the law, the evils to be remedied, and the objects and purposes
to
be obtained.
If the legislative
intent
can be
determined from unambiguous language of the
statute,
that intent
will be given effect without necessity of resort
to aids
of
construction.
It
is
axiomatic that if a statute contains language with
an
ordinary and popularly
understood meaning,
courts will assume that
is the meaning-intended by the legislature.
The terms of a statute are not
to
be considered
in
a vacuum.
Further,
as provided for in
Section
2(c)
of the
Act
(415
ILCS
5/2(c)), the terms and
provisions of the Act
shall be liberally construed so as to
effectuate the
purposes ofthe Act.
M.LG. Investments. Inc. v.
Illinois EPA.
122 Ill.2d 392, 397-398, 400,
523
N.E.2d
1, 3,
4
(1988).
C.
Deferencefor Illinois EPA’s interpretation
There
are
also
guidelines
established
regarding
deference
owed
to
a
state
agency’s
interpretations of
statutes.
Courts will give substantial weight and
deference to the interpretation
of an
ambiguous statue by
the agency charged with
the administration and
enforcement of the
statute
based
upon
the
fact that
the
agencies can
make
informed judgments
upon
the issues,
8
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based
upon
their
experience and
expertise.
Village
of Fox
River
Grove
v.
Pollution
Control
Board,
299
Ill. App.
3d 869,
878,
702 N.E.2d 656, 662
(2~
Dist.
1998).
While
an
appellate
court
is
not
bound
by
an
agency’s
interpretation
of
statutory
provisions, the agency’s interpretation should be given great weight.
It will be overturned only if
it is found to be erroneous.
Laidlaw Waste Systems v. Pollution Control Board, 230 Ill. App.
3d
132,
136-137,
595
N.E.2d 600, 603
(5th
Dist.
1992).
However,
there
are
certain
parameters
to
the
deference
to
be
accorded,
though
these
limits are not consistently defined from one court to the next.
Administrative
bodies are bound
by
prior custom and practice in
interpreting their rules and may not arbitrarily disregard
them.
Alton
Packaging
Corporation
v.
Pollution
Control
Board,
146
111.
App.
3d
1090.
1094,
497
N.E.2d 864,
864
(Sth
Dist.
1986).
Here though, the provision under examination is not
a rule of
the Illinois
EPA’s; rather, it is
a statutory provision passed by the legislature which the Illinois
EPA is charged with applying and interpreting.
Also,
courts
recognize
that
inconsistent
readings
by
the
Board
are
of
great
concern.
Although
an
administrative
agency
may
alter
its
past
interpretation
and
overturn
past
administrative rulings and practice, such abrupt shifts Constitute “danger signals” that
the Board
may
be acing
inconsistently
with
its
statutory
mandate.
Thus,
in
the very
least,
a
reasoned
analysis is
required, indicating
that prior
policies and
standards
are being deliberately
changed
and not casually ignored,
Chemetco. Inc.
v.
Pollution Control Board~140 Iii. App. 3d 283, 288-
289, 488 N.E.2d 639,
644
(5th
Dist.
1986).
Generally, the interpretation ofa statute by an administrative body charged with applying
the statute should be given great weight; this rule is usually applied in instances where the statute
is
ambiguous
and
where
the
interpretation by
the administrative
body
is
long-continued
and
9
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consistent
so that the legislature may be regarded as having concurred in it.
Moy v.
Department
ofRe~gistrationand
Education,
85
Iii. App. 3d
27, 31,
406 N.E.2d 191,
195
(1st Dist.
1980).
That
rule, however, does not state that in no
circumstance should a change in interpretation result in a
total lack
of deference
to
the
administrative
agency’s amended
or revised
interpretation
of a
statute.
Contrast those
cases
with holdings by
the United
States
Supreme Court.
When a court
reviews
an
agency’s
construction of a statute
it
administers,
two
questions
are raised.
First
is
whether the legislative
branch has directly spoken to
the precise question at
issue; if so, then the
clear intent should be followed.
But if there is no direct answer to the question at
issue, and the
statute
is
silent or ambiguous on the
issue,
the court is then faced with the question of whether
the
agency’s answer
is
based
on a
permissible
construction of the statute.
Chevron.
U.S.A.
v.
NRDC, 467 U.S. 837, 842-843,
104 S.Ct. 2778, 2781-2782 (1984).
The Supreme Court noted that it has long recognized that considerable weight should be
accorded
to
an
executive
department’s
construction
of a
statutory
scheme
it
is
entrusted to
administer.
Id., 467 U.S. at 844,
104 S.Ct. at 2782.
But the Court has also clearly rejected the argument that an agency’s interpretation is not
entitled to
deference because it represents a sharp break from prior interpretations
ofthe
statute
in
question.
The
Supreme
Court
has held
that
a
revised
interpretation
deserves
deference
because an initial
agency interpretation
is
not
instantly
carved
in
stone,
and
the agency is
not
required to
establish
rules of conduct to
last forever.
Rust
v.
Sullivan,
500 U.S.
173,
186, ill
S,Ct.
1759,
1769 (1990); Chevron, 467 U.S. at 862,
104 SCt. at 2791.
Therefore,
an
authority
no
less
than
the
Supreme
Court
has
recognized
that
an
administrative agency is not only entitled to revise
an interpretation ofa
statute with which it is
10
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charged to administer, but also that such revisions are
entitled to deference by
a reviewing
coUrt.
Thus, the Illinois EPA’s
interpretation as articulated and
applied in this
instance should
be
given
deference by the Board.
However, regardless ofthe level ofdeference the Board ultimately finds
is
warranted, the Illinois EPA’s final decision should still be affirmed since the interpretation on
which it was based is correct.
IV.
ILLINOIS EPA’S
INTERPRETATION
OF SECTION
39.2(F) IS CORRECT
It is certain that any
interpretation of the Act should be based, if at
all possible, upon the
clear language ofthe provision in question.
The provision
should be read
in
the context of the
Act as a whole,
and
should
be liberally construed to
give effect to all
words and
to the purpose
behind theprovision itself.3
In this case, the language in question provides as follows:
A local
siting approval granted under
Section
39.2
*
*
*
for a sanitary landfill
operation
~
*
~ shall
expire at the
end of
*
*
*
3
calendar years from
the date
upon which it was granted, and
unless within thatperiod the applicant has made
application to the Agencyfor
a permit to develop the site.
(Emphasis added.)
Section
39.2(f) of the
Act.
Looking
at this language,
the focus ofthe Illinois
EPA’s attention,
and ofthe Board’s attention now, is the proviso. that acts to prevent the expiration oflocal siting
approval
The Illinois
EPA had
interpreted this
language to mean that if any
application for a
development permit
was submitted
to
the
Illinois
EPA within the three calendar year window
before
siting
approval
expires,
regardless
of what
the
outcome
of the
application
was
(i.e.,
approval or denial), then the siting approval was effectively “saved” from expiration.
The
interpretation followed by
the Illinois
EPA
in
this
present situation,
one
followed
after
receiving
an
interpretation
from
the
Illinois
AGO,
is
that
the
permIt
application
for
development that must include proof of local
siting
approval must
be
submitted
to the Illinois
it should be noted that this
particular
provisioii
of the Act has never been
the
subject
of litigation or review by the
board,
thus
it is one offirst impression.
11
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EPA
within the
three calendar year
window.
The distinction
is
that
a previous
submittal
of a
developmentpermit application does not act to preserve the siting approval.
Thus,
in
the case now before the Board,
the Petitioner received
local
siting approval in
November
1996.
In April
2003,
the Petitioner submitted
the subject permit
application.
This
application,
which
included as
its
requisite
proof of local
siting
approval the November
1996
approval,
was
submitted
six
and
a
half calendar
years
after the
siting approval
was
granted.
There is
no
dispute that
the
subject permit
application
was submitted
well
beyond
the time
otherwise allowed by Section 39.2(f) ofthe Act to prevent the expiration oflocal siting approval.
The backdoor sought by the Petitioner to
avoid a finding that local siting approval expired was
that
a previous
permit
application was submitted within the time
allowed
and,
as
a
result, the
local siting approval did not expire.
There
are a number of flaws
with this
argument.
First
and
foremost,
it allows for the
possibility of submission of a “sham” permit application within three calendar years that would
act
to’
preserve
local
siting approval.
Under the
Petitioner’s
interpretation,
an
entity
could
receive local siting approval, then within three calendar years file a
sham permit application that
couldnot be
approved.
Based on that sham application, the entity would have preserved its grant
of local siting approval in perpetuity, since there would be no window ofexpiration.
Also, the Petitioner’s interpretation reads language into the Act that
is not found.
For the
Petitioner’s argument to prevail, the language
in question must read, “ujnless
within that period
the applicant has made ~y
application to the Agency for a permit to
develop the site.”
The Act
must
be read to mean any
application of any kind,
regardless of whether that
application was
approved or denied, can serve to halt
the expiration of local siting approval.
Unfortunately for
the Petitioner, the Act does not so read.
Similarly, the Petitioner cannot argue that the factthat it
12
•
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2177829807
2177829807
P.L5
actually received
a
development
permit
based
on
a
timely
submitted
application
(i.e.,
within
three
calendar
years
of
the
siting
approval) acts
to
prevent expiration
of the
siting approval,
because
to
do
so
would
read
further
words
not
found
in
Section
39.2(f).
The
language
in
question
would
then
have
to
read,
“ujnless
within that
period
the
applicant
has
made
~y
successful
application to
the Agency for a permit
to develop the
site.”
That reading strains ever
further the otherwise clear language ofthe Act.
The purpose behind the imposition of a windowupon which
siting approval would expire
is clearly to encourage the timely acting upon a siting approval.
The “evil” to be remedied is the
possibility
that
an
entity
will
take
the
minimal
steps
necessary (i.e.,
submission
of a
sham
application) to once and for all prevent the expiration of local siting approval.
Here, that would
allow
for
the
submission
of a
permit
application
over
six
years
after
the
underlying
siting
approval was granted.
Certainly, that was exactly the scenario that was intended to be avoided.
The Petitioner argues that the Illinois EPA seeks to impose a new statute oflimitations that is not
found in the Act.
Petitioner’s brief,
p.
10.
To the contrary, the Illinois EPA seeks to
enforce the
time
period currently set forth
in the Act.
It is the Petitioner that seeks to
avoid that period by
reading into the Act words and circumstances that do
not exist.
Consider the possibility
that the
Petitioner’s
arguments are taken as
being meritorious.
The Petitioner argues that a previously-issued development permit, which was based on a timely
submitted
permit
application,
allows
for
the
future
submissions
of
development
permit
applications
in
perpetuity
without
the
need
to
ever
seek
new
local
siting
approval.
But
circumstances
change,
communities
change,
and
permitted
facilities
change.
The
General
Assembly
rightly
sought
to
allow local
units of government to
maintain consistent
and
timely
13
RPR—~52004
15
59
2177829807
2177829807
P.
oversight
of landfill development within their local
boundaries,
and
the
Petitioner’s
arguments
would defeat that intent.
The Petitioner would
claim that
it has been diligent in its
pursuit of a permit, and
that it
has almost continuously had an application on file with the Illinois EPA.
While those facts may
be
true, the only relevant consideration
is
whether the subject permit application was submitted
witbin three
calendar windows of the
siting approval.
Since
it
was not, there
is
no
way
the
Illinois EPA could approve the permit sought.
The Illinois EPA’s reading of the Act is consistent with the purposes
ofthe Act and the
imposition
of
a
time
certain
for
acting
upon
local
siting
approval.
The
Illinois
EPA’s
interpretation
does not
require a
strained reading of the
Act, nor
does it result
in
an
overly
restrictive reading of the Act, since it would
be
consistent with the General Assembly’s finding
that three calendar years
is
a
sufficient time
to file all
necessary permit
applications based
on
siting approval.
If a permit
application
is sought outside that window that requires local siting
approval, it is
clear
the General Assembly
intended that
an applicant must return
to
the siting
body to request additional siting approval.
This would allow for the local unit
of
government
to
continue
to maintain
the oversight and control of the development of landfills as contemplated
by the whole concept oflocal siting approval.
•
The Illinois EPA acknowledged that
the interpretation
now being taken was not
always
followed.
However,
as
the Supreme
Court
has acknowledged,
and as the Board
must
note, the
Illinois EPA can and sometimes should revise its interpretations ofthe Act.
Here, the receipt of
an
interpretation
from
the
Illinois
AGO,
the
state’s
legal
officer,
resulted
in
the
change of
interpretation.
And
while
the
Petitioner
repeats
several
times
that
the
Illinois
EPA’s
interpretation was followed for a number of years, the Petitioner did not present any testimony or
14
RPR—952004
15:59
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2177829807
P.1?
evidence that would demonstrate exactly how many times that interpretation was dispositive in a
permit
decision.
In other words,
though the Illinois
EPA may have taken that interpretation
in
the
past,
there is
no
evidence that
the
interpretation was relevant
in
anything
other than the
present situation.
V.
CONCLUSION
Based
on
the
arguments
made
herein,
and
the
fact
that
the
Illinois
EPA
conectly
interpreted and applied
Section 39,2(f) of the Act, the Illinois EPA respectfully requests that the
Board
enter an order affirming the denial
ofthe subject permit application.
The Illinois EPA’s
interpretation
is
consistent with
the plain
wording of the
Act,
serves
to
meet the
intent of the
General Assembly,
and was
done
following input by the Illinois
AGO.
The Petitioner has not
met
its burden in this
case, as the interpretation espoused by it is
inconsistent with the Act and
the
relevant
facts
and
dates.
For these
reasons,
the
Board
should
affirm the
Illinois
EPA’s
decision dated December
5,
2003.
RespecthiUy submitted,
ILLThTOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
~i~J~3
John 3. Kim
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021
North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: April
5,
2004
15
PPR—~5—2~0415:59
2177829807
2177829807
P.t8
CERTIFICATE
OF
SERVICE
I, the undersigned attorney at law, hereby certify that on
April 5,
2004,
I served true and
correct copies of a RESPONSE
TO PETITIONER’S BRIEF,
by telefaxing and by placing true
and
correct
copies
in
properly
sealed and
addressed
envelopes
and
by
depositing
said
sealed
envelopes in
a U.S.
mail drop box located within Springfield, Illinois, with sufficient First
Class
Mail postage affixed thereto, upon the followingnamed persons:
Dorothy
M. Gunn,
Clerk
Illinois Pollution Control
Board
James R Thompson Center
100
West Randolph
Street
Suite 11-500
Chicago, IL 60601
Fax:
312-814-3669
Carol Sudman, Hearing Officer (Hand Delivery)
Illinois Pollution Control
Board
1021
North
Grand Avenue,
East
P.O. Box
19274
Springfield,
IL
62797-9274
Stephen
F. Hedinger
Redinger LawOffice
2601
South Fifth Street
Springfield,
IL
62703
Fax:
217-523-4366
Brian E. Konzen
Lueders, Robertson
&
Konzen,
LLC
1939
DelmarAvenue
P.O. Box 732
Granite City. IL
62040-0735
Fax:
618-876-4534
Rod Wolfe,
State’s
Attorney
Saline County State’s Attorney Office
Saline
County Courthouse
10
East Poplar Street
1larnsburg,
IL
62946
Fax:
618-253-7160
ILLNOXS ENVIRONMENTAL PROTECTION AGENCY.
John(~TKii
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021
North Grand Avenue, East
P.O. Box
19276
Springfield,
Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
TOTRL P.18
RPR—~S—2~0415:56
2177829807
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P.01
RECE~VE~
CLERK’S OFFICE
APR 05
2004
STATE OF ILLINOIS
ILLINOIS ENVIRONMENTAL PROT
ECTION
AGENC’PoIIution Control Board
DWXSION OF LEGAL COUNSEL
1021 NORTH GRAND AVENUE EAST,
POST OFFICE BOX 19276
SPR.Th~GFmLD,
ILLTh~OIS62794-9276
TELE?HON~
(217)782-554.4-FACSBIILE (21.7)782-9807
DATE:
9
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